Did Water District Director Roger Faubel Violate Conflict-of-Interest Laws?

Ask Roger Faubel, and he'll tell you the answer is no. He'll tell you this despite the fact that between 2006 and April of this year, he served as both a publicly elected representative of the Santa Margarita Water District (SMWD) and as a paid consultant to Poseidon Resources Inc., the company interested in selling the district pricey, desalinated water. Faubel quietly departed the water district's board of directors last month, saying the growth of his PR firm, Faubel and Associates, required too much of his attention.

Faubel tells the Weekly there was no conflict of interest because he was a Poseidon consultant five years before the start of his first term. He referenced a 2009 legal analysis conducted by Best, Best & Kreiger, which said that despite having a paid Poseidon employee on the board, Faubel's long relationship legally allowed SMWD to pursue a contract with the company. Faubel was quick to add that he was still required to recuse himself from discussions involving Poseidon and report the relationship to the Fair Political Practices Commission (FPPC). He maintains that in both cases, he followed the advice of district lawyers.

But public records show that during Faubel's more than six years at SMWD, there were two years when he didn't report his relationship with Poseidon--in 2007, and again in 2008.

When asked why, he struggled to recall. "That was an error if that was the case," he said. "I just don't remember."

In a follow-up voice message, Faubel confirmed that he hadn't reported his relationship with Poseidon during those two years, but explained it was because the company had hired another consultant.

"I had a hiatus in my employment as a consultant with Poseidon, and I have no fees or financial benefit from Poseidon in 2007 and 2008," he said.

But if he wasn't getting paid by Poseidon in 2008, it didn't stop him from claiming an association with the Connecticut-based company. According to the minutes of a June 13, 2008, engineering committee meeting, the board was set to vote on a memorandum of understanding between Poseidon and two other Orange County water districts. Faubel recused himself. The minutes read as follows:

"Director Faubel advised the board that his firm represents Poseidon Resources, specifically with water marketing, and felt it would be appropriate to be recused from the discussion."

Though this discussion clearly presented a conflict in Faubel's mind, another Poseidon-related discussion, one month prior, did not. During a May 23, 2008, finance committee meeting, the board considered future talks to determine the feasibility of "one or more large-scale projects to include SMWD, Poseidon or other potential investors." Faubel made a motion to support the item, which was approved unanimously.

Officials at the FPPC won't comment on specific public representatives, but in an email to the Weekly , Legislative Coordinator Tara Stock explained that elected officials should recuse themselves if they stand to gain financially from a decision.

"If a source of income to a public official is directly involved in a decision before an official's agency, any reasonably foreseeable financial effect is deemed material and the official would need to abstain from the decision."

She added that violations of the Political Reform Act can result in fines of $5,000 each.

Whether Faubel foresaw any benefit to his own wallet when he voted in Poseidon's favor in May 2008, is open to interpretation. But for its part, Poseidon seemed pleased with his performance as a district director. When he ran for re-election in 2010, the company showed its approval with a $1,000 contribution.